State v. Culotta

343 So. 2d 977
CourtSupreme Court of Louisiana
DecidedApril 6, 1977
Docket57976
StatusPublished
Cited by43 cases

This text of 343 So. 2d 977 (State v. Culotta) is published on Counsel Stack Legal Research, covering Supreme Court of Louisiana primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Culotta, 343 So. 2d 977 (La. 1977).

Opinion

343 So.2d 977 (1976)

STATE of Louisiana, Relator,
v.
Craig CULOTTA et al., Respondents.

No. 57976.

Supreme Court of Louisiana.

November 8, 1976.
Rehearing Denied December 20, 1976.
Dissenting Opinion April 6, 1977.

*978 William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Connick, Dist. Atty., Sheila C. Myers, Asst. Dist. Atty., for plaintiff-relator.

William Noland, New Orleans, for respondent Bruce Hardy.

William J. O'Hara, III, New Orleans, for respondent Craig Culotta.

TATE, Justice.

On the application of the state, we granted certiorari, La., 332 So.2d 865 (1976), to review the trial court's suppression of certain evidence as illegally seized. The principal issue concerns the standing of the defendants to contest the legality of the search and seizure insofar as based on evidence obtained as the result of an illegal arrest of third persons. See La.Const. of 1974, Art. 1, Section 5.

(1)

The defendants are charged with illegal possession of certain drugs with intent to distribute them. The place of the offense is shown to be 850 Florida Boulevard, Rear, New Orleans. The drugs were found pursuant to a search and seizure of these premises as authorized by a search warrant.

Two of the defendants filed motions to suppress the drugs as illegally seized. The essential basis of the motions was that the search warrant was invalid, because the affidavit used to procure it was inadequate to furnish grounds for authorization for the search.

The trial court sustained the defendants' contention. In holding the affidavit insufficient, the trial court concluded that: (a) much of the information contained in the affidavit was based on "double hearsay" and thus did not meet the reliability constitutionally required for validity of a search warrant based upon such an affidavit; and (b) some of the information was obtained because of the illegal arrest of third persons, which the defendants had standing to contest, if a basis of the present search, by reason of our state constitution of 1974.

(2)

In State v. Paciera, 290 So.2d 681 (La. 1974), we summarized the principles applicable. We first noted that a search warrant may not be issued upon an affidavit indicating that the affiant has reasonable cause to suspect that the object of the search is in the premises. The affidavit must recite facts establishing to the satisfaction of the magistrate who issues the search warrant that probable cause exists to search the premises for the object sought.

In summarizing the constitutionally-mandated test of reliability, we stated, 290 So.2d 685-86:

"* * * The affidavit submitted to the magistrate may be based entirely upon hearsay, but, if so, it must set forth underlying circumstances and details sufficient to provide a substantial factual basis by which the magistrate might find reliable both the informant and the information given by him. Factors which support the credibility of an unidentified informant include prior accurate reports or any specific independent corroboration of the accuracy of the instant report. Factors which support the credibility of the information reported include (a) direct personal observation by the informant, or (b), if the information came indirectly to the informant, the reasons in sufficient factual detail for the magistrate to evaluate and credit the reliability both of the indirect source and of the indirectly-obtained information."

In State v. Paciera we specifically rejected contentions similar to the present that "double hearsay" information could not per se be considered sufficiently reliable to justify issuance of a search warrant. Providing *979 that the affidavit meets the tests of both reliability of informant and information above set forth, a search warrant may be validly based upon hearsay information which demonstrates a substantial factual basis for the search.

In Paciera (as in the present case), the affidavit was executed by one police officer based substantially upon information furnished by him by other identified police officers. The information was based upon these non-affiant officers' own personal observations, as well as upon informational leads furnished to them by an un identified informant known by them (but not by the affiant) to be reliable, for reasons sufficiently set forth in the affidavit.

We concluded, citing United States v. Harris, 403 U.S. 573, 91 S.Ct. 2075, 29 L.Ed.2d 723 (1971), that an affidavit may be sufficient, "even if based entirely upon hearsay, when the detailed and specific showing made by it afford[s] a `substantial basis' for crediting the hearsay due to corroborating circumstances shown." 290 So.2d 686-87.

Paciera may also be considered as authority for holding that information furnished to an affiant police officer by other identified police officers, based upon their own first-hand observations, may be considered reliable; as may information furnished to these non-affiant identified police officers by an un identified informant—providing, as to this latter information, the affidavit itself set forth sufficient factual specificity to credit the reliability both of the unidentified informant and of the information furnished by him to the non-affiant officers.

As will be shown in more detail, we find that the present affidavit meets the test of constitutional reliability set forth by Paciera.

(3)

Before discussing the present affidavit, however, it may be well to note that, in both the cited decision and the present instance, the affidavit was substantially based upon substantial reliable and corroborating factual information established by first-hand observation of identified police officers, while the specific and detailed factual data secured from the unidentified informant (shown by the affidavit to be reliable) was in the nature of the initiating leads by which the police officers secured first-hand corroborating information justifying the search.

We emphasize that we are not here concerned with an affidavit where the probable cause for the search is furnished entirely by the information secured from an unidentified informant, known to be reliable not by the affiant but instead only by the hearsay report to the affiant by yet another officer, without other corroborating circumstances shown (as here) by further investigation by the police officers. As to such an affidavit, the issuing magistrate (or the reviewing court) might well wish to determine why the affidavit is not executed by the police with the first-hand report, rather than by another officer merely relaying on to the magistrate such information but without affording the magistrate an immediate opportunity to question the source of the information with regard to its reliability.

On the other hand, where as here the probable cause for the search warrant is shown by the correlation of information obtained by police investigation from numerous sources, we do not believe that the constitution mandates that each officer involved swear out a separate affidavit verifying each chain in the link of probable cause. Providing that the specific and detailed factual showing of information obtained by identified police officers meets the Paciera

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